State of H.P. vs Chuni Lal

Justice Sanjay Karol, J.—For an offence, which is alleged to have been committed on 18.7.2002, accused was put to trial. In terms of judgment dated 30.12.2004 passed by learned Addl. Sessions Judge, Ghumarwin, Distt. Bilaspur, in Sessions Trial No. 32/7 of 2004/2003 titled as State of H.P. vs. Chuni Lal, accused stands acquitted of the charged offences.

It is the case of prosecution that prosecutrix (PW-9) daughter of Sh. Jagdish Chand (PW-10) and Smt. Roshani Devi (PW-11) used to reside at village Kaller. On 17th July, 2002, there was a function of Mundan Sanskar in the house of PW-10. Accused had also participated in the celebration. In the morning of 18th July, 2002, prosecutrix was found missing from her house. Parents searched for the prosecutrix in the locality but she could not be found anywhere. Accordingly PW-10 reported the matter to the Pradhan of the Gram Panchayat who advised that the matter be reported to the police. Accordingly PW-10 lodged F.I.R. No.83/2002 (Ext.PW-10/A), dated 18.7.2002 under Sections 363, 366 IPC at Police Station, Talai. The matter was investigated by HC Suram Singh (PW-13) who along with Pritam Singh, Rajesh and Ramesh Chand (PW-12) searched for the prosecutrix. Ultimately they recovered the prosecutrix from the house of the sister of the accused in Garshankar (Punjab). Custody of the prosecutrix was handed over to her father. She was got medically examined from Dr. G. Goswami (PW -5), Medical Officer, District Hospital, Bilaspur, who submitted her report (Ext.PW-5/C) opining that prosecutrix was not habitual to sexual intercourse but possibility of intercourse could not be ruled out. Investigation further revealed that accused had kidnapped the prosecutrix and confined her at the place of his sister. In order to determine the age of the prosecutrix police took on record school leaving certificate (Ext.PW-8/A) and certificate (Ext.PW-7/B), issued as per the pariwar register. Her radiological examination was also got examined through Dr. B. Bhangal (PW-6) who submitted his report (Ext.PW-6/A) indicating that prosecutrix was between 16-18 years. With the completion of investigation challan was presented in the Court for trial.

Accused was charged for having committed offences punishable under Sections 363, 366 & 376 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to prove its case prosecution examined as many as 17 witnesses and the statement of the accused u/s 313 Cr.PC was also recorded.

The Court below acquitted the accused of the charged offences. Hence the present appeal.

Dr. Goswami (PW-5) who medically examined the prosecutrix opined that no marks of violence were seen on any part of the body of the prosecutrix. Hymen was absent and the prosecutrix was not habitual of sexual intercourse but possibility of intercourse could not be ruled out.

With regard to the age, prosecution has not been able to prove the exact date of birth of the prosecutrix. Parents i.e. PW-1, PW-10, PW-11 and brother (PW-12) are not in a position to disclose the exact date of birth. They simply state that prosecutrix was 15 years of age on the date of alleged offence. Prosecutrix herself has not disclosed her date of birth. Extract of the Pariwar register (Ext.PW-7/A) has been proved by PW-7. Now this witness states that panchayat maintains separate birth and death register from which only the exact date of birth, as maintained by the panchayat could be ascertained. He states that name of the prosecutrix is not entered into the birth register maintained by the panchayat. Even from the Pariwar register, age and date of birth of the prosecutrix cannot be proved. Kishori Lal Sharma (PW-8), Central Head Teacher of Primary School, who issued certificate of birth (Ext.DA) admits not to have made entries with regard to the date of birth of the prosecutrix in the register. He is also not aware as to who had recorded the age of the prosecutrix at the time of entry as against this evidence there is a statement of Dr. Bhangal (PW-6) who conducted skiogram test of the prosecutrix and submitted report (Ext.PW-6/A). Evidently this witness has found the prosecutrix to be between 16 to 18 years of age. Thus it can safely be said that prosecutrix has not been able to establish, beyond reasonable doubt, by leading clear, cogent and convincing material to show that prosecutrix was less than 16/18 years of age as on the date of the alleged crime. Coming to the main allegation of kidnapping and rape, we find that version of the prosecutrix not to be inspiring confidence and it appears that police had recorded her statement twice just to make out a case against the accused. On 17.7.2002 accused proposed to marry her. He threatened her to accompany him. During night intervening 17th/18th July, 2002 at about 3.00 a.m. accused brought a Van near her house and then took her in the same to Ludhiana. Accused took her under threat. They travelled by bus from Ludhiana to Garshankar, where they stayed in the house of sister of the accused. Next day her father along with police came to Garshankar and took her away. She also states that 10-15 days prior to 17.7.2002, while she had gone to fetch water from the tap, accused raped her. She states that accused forcibly committed sexual intercourse twice. Record reveals that prosecution has recorded her statement twice, once on 19.7.2002. Her statement in that regard is Ext.PW-13/C. Now in this statement there is nothing to show that accused had actually raped her or for that matter kidnapped her. She had stated that she had left of her own volition as she had wanted to marry accused but due to the objection raised by her parents marriage could not be solemnized. Her second statement was recorded on 22.7.2002 by the police. This is admitted by SI Shamsher Singh (PW-14). It is in this statement that prosecutrix alleged that she was raped. In her cross-examination, in Court she states that a day when she left her house she had been sleeping with other members of the family and that she had left without informing them. What was the nature of threat has not been disclosed by her. Thus her version that she went under threat does not inspire confidence. In the middle of the night she would have not left the house unless she had desired to do so. It is not the case of the prosecution that accused was also residing in the house and had taken her away under threat. Further she travelled from place to place in the Van and in the bus. She could have conveniently escaped or sought help had she not volunteered to travel to different state. She admits that at Garshankar she had slept in the room of sister of the accused. She admits to have made statement to the police that accused had not committed sexual intercourse with her at any point in time. This version of hers infact stands corroborated by medical evidence on record. She admits that accused had put �Sindhur� on her forehead. Thus from the version of the prosecutrix, it is quite apparent that she had left her house voluntarily with the accused. This fact is supported by the version of her mother PW-11 who admits that prosecutrix had been insisting to get married to the accused but was advised not to do so as he belongs to Scheduled Caste category. There is yet another version which has come on record. According to the original statement made by the prosecutrix she had herself gone to Garshankar to condole death of a girl which version is corroborated by the Investigating Officer who found this fact to be true. Father of the prosecutrix, no doubt has supported the prosecution case but while being cross-examined he admits that his report made to the police that prosecutrix had taken away money and other valuable from the house not to be true. In fact Rs. .1500/- which he was suspecting to have been taken by the prosecutrix were found in the house itself. To us it appears that prosecutrix wanted to get married to the accused but the marriage was resisted by the parents and, therefore, prosecutrix of her own volition left with the accused but her custody was lateron handed over by the police to her parents. It cannot be said that accused had removed the prosecutrix from lawful guardianship of her parents or that he had induced the prosecutrix to compel her to marry him.

Prosecution has failed to bring home the guilt of the accused by leading clear, cogent and convincing evidence.

Accused has had the advantage of having been acquitted by the Court below. Keeping in view the principles laid down in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.